UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA. Plaintiffs,

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1 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 1 of 52 UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA DOBOSZENSKI & SONS, INC. and DOUGLAS DOBOSZENSKI, Civil File No. Plaintiffs, vs KATHLEEN SEBELIUS, in her official capacity as Secretary of the United States Department of Health and Human Services and her successor; and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JURY TRIAL DEMANDED SETH D. HARRIS, in his official capacity as Acting Secretary of the United States Department of Labor and his successor; and the UNITED STATES DEPARTMENT OF LABOR; JACOB LEW, in his official capacity as U.S. Secretary of the Treasury and his successor; and the UNITED STATES DEPARTMENT OF THE TREASURY, and DANIEL I. WERFEL, in this official capacity as Acting Commissioner of Internal Revenue and his successor; and the INTERNAL REVENUE SERVICE, Defendants.

2 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 2 of 52 Verified Complaint for Declaratory and Injunctive Relief Plaintiff Douglas Doboszenski, ( Doboszenski ) and his company, Doboszenski & Sons, Inc. ( Company ), through their counsel, complain against the above-named Defendants (collectively HHS ) as follows: Introduction 1. In this action, Doboszenski and his privately-held Company challenge certain regulations adopted under the 2010 Patient Protection and Affordable Care Act ( Affordable Care Act ), Pub. L. No , 124 Stat The regulations force certain religious persons who own and/or operate for-profit companies to include in their group health plans coverage for products and services that violate their religious beliefs under threat of substantial monetary fines and penalties. 2. Specifically, Doboszenski and his Company seek declaratory and injunctive relief from the operation of the final rules promulgated by the HHS, mandating that all group health plans, inclusive of self-insured plans, include coverage, without cost sharing, for [a]ll Food and Drug Administration [(FDA)] approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity in plan years beginning on or after August 1, 2012 ( the HHS Mandate ), see 45 CFR (a)(1)(iv), as confirmed at 77 Fed. Reg (Feb. 15, 2012), adopting and quoting Health 2

3 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 3 of 52 Resources and Services Administration Guidelines found at Resources Services.gov/womensguidelines. 3. Doboszenski owns 70% of the shares of the Company. Doboszenski is Roman Catholic. Doboszenski holds sincere religious beliefs based on the Roman Catholic Catechism which states abortion willed as an end or as a means, is a criminal practice and which states direct sterilization and contraception are morally unacceptable. The Catechism also instructs that a person who deviates from its teachings is involved in a public scandal. As Catholic laypersons, Doboszenski must avoid public scandal. 4. The HHS Mandate to Doboszenski is sinful and immoral. Yet, the Mandate is coercing him and his Company to violate their religious beliefs and expose him or his Company or both to governmental imposition of substantial fines and penalties. As the deadline for the renewal of the Company s group health plan arrives on December 1, 2013 (pending approval by Medica), Doboszenski, knows that he has a religious obligation to provide for his employees through health care plans, must now confront the federal coercion imposed upon him and violate the HHS Mandate. 5. As it presently stands, the HHS Mandate violates Doboszenski s constitutionally protected rights of freedom of speech, freedom of religion, due process and equal protection. The Mandate further violates the Religious Freedom 3

4 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 4 of 52 Restoration Act and the Administrative Procedures Act. Injunctive relief will, in the first instance, allow Doboszenski and his Company to continue providing for their employees with group health insurance without an HHS Mandate, avoid public scandal, and free him and the Company from governmental constitutional burdens that interfere with their religious beliefs. The injunction will permit Doboszenski and the Company to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs. Likewise, if Doboszenski and the Company fail to provide health coverage to his employees, the Internal Revenue Service may impose significant penalties upon the employees. Similarly, without health insurance coverage, the government places Doboszenski and the Company in a difficult position by causing him to harm his employees who have relied upon the Company s insurance benefits because the employees in turn may be exposed to possible significant IRS penalties as well. 6. HHS actions violate Doboszenski s and the Company s right to freely exercise their religion, which are protected by the First Amendment and the Fifth Amendment of the United States Constitution and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq. ( RFRA ). 7. HHS actions in providing an exemption to religious non-profit employers, but not to for-profit business owners with the same religious objections, 4

5 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 5 of 52 violate the Establishment Clause of the First Amendment to United States Constitution. 8. HHS actions also violate Doboszenski and the Company s rights to freedom of speech, which are protected by the Free Speech Clause of the First Amendment to the United States Constitution. 9. Further, HHS actions violated the Administrative Procedures Act, 5 U.S.C. 553, by adopting and imposing the HHS Mandate without prior notice or public comment. 10. Doboszenski and Company are currently being impermissibly coerced by the HHS Mandate and its substantial fines and penalties to violate their religious beliefs. 11. Doboszenski and Company will continue to be harmed unless this Court provides them their requested injunctive relief from HHS s illegal and unconstitutional actions. This injunctive relief must include barring the IRS and all agencies from the imposition of fines and penalties against the Company, Doboszenski, and his employees. Jurisdiction and Venue 12. This action arises under the Constitution and laws of the United States. This Court has subject matter jurisdiction pursuant to 28 U.S.C. 1331, 1361 and 42 U.S.C This Court has jurisdiction to render declaratory and 5

6 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 6 of 52 injunctive relief under 28 U.S.C & 2202, 42 U.S.C. 2000bb-1, and 5 U.S.C This Court has jurisdiction to award reasonable attorney s fees and costs under the Equal Justice Act, 28 U.S.C. 2412, and 42 U.S.C Venue is appropriate in this district pursuant to 28 U.S.C. 1391(e)(1) because the Plaintiffs reside within this district. The Parties 14. Plaintiff Douglas Doboszenski is an individual and a citizen of the State of Minnesota. He is 70% owner of the Company and is President of the Company. He is a member of the parish of St. Peter and Paul in Loretto, Minnesota, and attends religious services there. 15. Plaintiff Doboszenski & Sons, Inc. ( Company ) is a Minnesota corporation owned by Doboszenski. The address of the Company s corporate headquarters is 9520 County Road 19, Loretto, MN The Company is privately held. The Company is a construction company. 16. Defendant United States Department of Health and Human Services ( HHS ) is an agency of the United States. HHS is responsible for the administration and enforcement of the HHS Mandate. 17. Defendant Kathleen Sebelius is the Secretary of Health and Human Services. As Secretary. She is responsible for the operation and management of the HHS. She is sued in her official capacity only. 6

7 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 7 of Defendant United States Department of Labor is an agency of the United States government. The Department of Labor is responsible for the administration and enforcement of the HHS Mandate. 19. Defendant Seth D. Harris is the Acting Secretary of the United States. Department of Labor. As Acting Secretary, he is responsible for the operation and management of the Department. He is sued in his official capacity only. 20. Defendant United States Department of the Treasury is an agency of the United States government. The Department of the Treasury is responsible for the administration and enforcement of the Mandate. 21. Defendant Jacob Lew in his official capacity as U.S. Secretary of the Department of the Treasury is responsible for the operation and management of the United States Department of the Treasury. He is sued in his official capacity only. 22. Defendant Internal Revenue Service is an agency of the United States government. The IRS is responsible for the administration and enforcement of the Affordable Care Act. 23. Defendant Daniel I. Werfel in his official capacity as Acting Commissioner of Internal Revenue. The Internal Revenue Service is responsible for the operation, administration and enforcement of the ACA. He is sued in his official capacity only. 7

8 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 8 of 52 Factual Allegations Doboszenski holds sincere religious beliefs which conflict with the HHS Mandate. 24. Doboszenski is Roman Catholic and holds sincere religious beliefs based on Catholic teaching. 25. Doboszenski, as owner and officer of the Company, is responsible for the Company s day-to-day operations and overall well-being. The Company reflects Doboszenski s business and personal belief philosophies. In addition, his positions and ownership in the Company are the source of support for his family. 26. Doboszenski is a practicing, orthodox Roman Catholic. He believes in the doctrine of the Catholic Church, with which he has become intimately familiar through personal study, practice, and catechesis. Doboszenski observes his religious views as a practicing Catholic through prayer, observance of Holy Days, and daily Mass, among other faith-based activities. 27. Doboszenski sees his role as President and owner of the Company as his personal vocation that requires from him a daily commitment to excellently serve the Lord Jesus Christ according to the teachings of the Catechism. He asserts that the Company is the place he goes daily to live out his Christian beliefs in work and provision for his family and others. He also lives out his Christian beliefs through his position as a trustee of the Parish of Sts. Peter and Paul. It is Doboszenski s religious beliefs that have established in his mind the value of work 8

9 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 9 of 52 as a gift from God, and that every Christian and Roman Catholic must wisely use the talents that have been entrusted them by God. Doboszenski exercises his religion throughout the day at work in his work ethic; in his openness about his Catholic faith with anyone and everyone; in his respect for the dignity of each of his employees as human beings and children of an Almighty God. Doboszenski firmly believes that he is a Catholic regardless of where he goes and what he does, and the workplace is no exception. 28. As a member of the Roman Catholic Church, Doboszenski adheres to the Catechism of the Catholic Church ( Catechism ) on abortion and contraception. See, e.g., Code of Canon Law 757. Doboszenski came to believe what he believes through personal study and through significant learning in Catholic schools and frequent Mass. 29. The Catechism 2322 states abortion is a criminal practice under religious law: 2322 From its conception, the child has the right to life. Direct abortion, that is, abortion willed as an end or as a means, is a "criminal" practice (GS 27 3), gravely contrary to the moral law. The Church imposes the canonical penalty of excommunication for this crime against human life. 30. The Catechism , 2399 state that direct sterilization and contraception are morally unacceptable under Catholic religious law. 9

10 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 10 of Thus, Doboszenski is required to adhere to the religious teaching that contraception and abortion are sinful and morally unacceptable under Catholic religious law and sincerely hold and exercise those beliefs. 32. Doboszenski is required to follow this religious teaching in his life, even if it relates to his Company and requires action through his Company. 33. In fact, the Catholic Church considers it a public scandal, according to its own meaning of the term, if Doboszenski were to materially deviate from the Catechism in his life. Catechism Catechism 2285 states: (Footnotes omitted). Scandal takes on a particular gravity by reason of the authority of those who cause it or the weakness of those who are scandalized. It prompted our Lord to utter this curse: "Whoever causes one of these little ones who believe in me to sin, it would be better for him to have a great millstone fastened round his neck and to be drowned in the depth of the sea." Scandal is grave when given by those who by nature or office are obliged to teach and educate others. Jesus reproaches the scribes and Pharisees on this account: he likens them to wolves in sheep's clothing. 35. Accordingly, Doboszenski, as a Catholic layperson, is very careful to avoid public scandal. 36. Thus, with respect to the Company, Doboszenski operates his Company in ways that adhere to and are not violative of the Catechism. Doboszenski and his Company strive to support life and avoid public scandal. 10

11 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 11 of Doboszenski, as a member of a parish, is very concerned about violating Catholic teaching and the public scandal which would accompany those violations. 38. The Catechism also compels Doboszenski to provide for the physical health of his employees. Moreover, Doboszenski believes that the Catholic faith proposes that he ought to do the best he can for his employees. He exercises his religious beliefs by offering group health plans for his employees consistent with the Catechism. 39. The HHS Mandate requires that the Company s group health plan provide and pay for coverage for contraception, sterilization, abortifacient drugs, and related education and counseling. Among the products the HHS Mandate requires Company s group plan to fund are Plan B (the morning after pill ) and Ella (the week after pill ), 1 drugs that are designed to destroy early human life shortly after conception. 40. Doboszenski believes that paying for a group health plan that complies with the HHS Mandate is sinful and immoral because it requires Doboszenski, through his Company, to pay for contraception, sterilization, abortifacient drugs and related education and counseling violating the Catechism. 1 FDA Office of Women s Health, Birth Control Guide, available at /UCM pdf. 11

12 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 12 of Doboszenski desires to continue offering a group health plan to Company employees, but wish to exclude coverage for products and services that violate their religious beliefs, such as those required by the HHS Mandate. 42. HHS will not allow Doboszenski to exclude these Mandate coverages when the Company plans to renew its group health plan coverage. 43. In short, the HHS Mandate will not permit Doboszenski to operate his business in accordance with the Catechism and his sincerely held religious beliefs. 44. In order for Doboszenski to avoid involvement in a public scandal, as defined by the Catechism and Code of Canon Law, Doboszenski and his Company would have to obtain a group health plan that does not comply with the HHS Mandate. Instead, HHS is coercing Doboszenski and his Company to violate the HHS Mandate, exposing him and his Company to substantial fines and penalties. 26 U.S.C. 4980D. 45. If Doboszenski and his Company must choose to exercise his religious beliefs by offering a group health plan that does not comply with the HHS Mandate, he subjects himself to substantial fines and penalties. 26 U.S.C. 4980D. 46. The Company will not be compliant with the HHS Mandate when it chooses to discontinue a legally-compliant group health plan, subjecting it to substantial fines and penalties, unless it receives relief from this Court. 12

13 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 13 of Doboszenski s and his Company s decision to discontinue a legallyrequired health plan because of the HHS Mandate will not be done willingly, but under the coercive pressure of the HHS Mandate and the public scandal it would create for Doboszenski if he were to comply with the HHS Mandate. 48. The HHS has exempted certain non-profit employers from complying with the requirements of the HHS Mandate in an attempt to accommodate the religious beliefs of those employers, see 76 Fed. Reg , (issued on August 1, and published on August 3). However, despite the same sincere religious objections, the Company does not, and cannot, meet the HHS s narrow qualifications for such an exemption. The Company reflects the religious beliefs of its owners. 49. The Company currently employs approximately 30 full-time and 2 part-time employees. Thus, the Company currently employs fewer than 49 full-time employees and full-time equivalents. 50. Doboszenski owns 70% share of the Company. 51. Doboszenski, personally, and consistent with his membership in the Roman Catholic Church, strives to operate his Company in accordance with the religious, ethical, and moral teachings of the Catholic Church. 52. The Company currently has a group health plan. 13

14 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 14 of According to HHS regulations, 77 Fed. Reg. at 8725, the Company s group health plan is subject to the HHS Mandate. 54. Doboszenski s religious beliefs prohibit the Company from intentionally providing a group health plan that provides coverage for contraception, sterilization, abortion and abortifacient drugs and related education and counseling. He believes that doing so would be acting as an accomplice to sin, which is still a sin in and of itself. 55. Doboszenski is aware of the national controversy surrounding the HHS Mandate and the many lawsuits filed by Catholics and others around the country who own businesses and have the same religious objections to the HHS Mandate. 56. The HHS Mandate denies Doboszenski and his Company of any choice to select a group health plan that does not cover and finance contraception, sterilization, and abortifacient drugs and related education and counseling. 57. As a result of the HHS Mandate, Doboszenski and the Company cannot offer a group health plan to its employees that accords with and does not violate Doboszenski s sincerely-held religious beliefs. 58. Doboszenski believes he has a moral and religious duty to provide the best he can for his employees, which, until the enactment of the HHS Mandate, he has accomplished by providing a group health plan for the Company employees; 14

15 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 15 of 52 however, he cannot continue to do so without violating their religious beliefs because of the HHS Mandate. 59. If the Company provides a group health plan that does not comply with the HHS Mandate, the Company is subject to the imposition of substantial fines and penalties. The ACA and the HHS Mandate 60. The Patient Protection and Affordable Care Act ( ACA ), Pub. L. No , 124 Stat. 119, enacted in March 2010, requires group health plans to provide women with preventive care and screenings at no charge to the patient. See 42 U.S.C. 300gg-13(a)(4). Id. 61. The ACA provides: A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph. 62. In July, 2010, HHS issued regulations ordering HHS s Health Resources Services Administration ( Health Resources Services ) to develop 15

16 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 16 of 52 guidelines that would determine what preventative care and screenings would be mandated under the ACA. See 75 Fed. Reg (July 19, 2010). 63. Health Resources Services commissioned and funded a committee at the Institute of Medicine to recommend which drugs, procedures, and services should be covered by all health plans as preventive care for women. 64. The Institute of Medicine s report 2 to Health Resources Services recommended that preventative care for women include the full range of Food and Drug Administration-approved contraceptive methods, sterilization procedures, and patient education and counseling for women with reproductive capacity. 65. On August 1, 2011, without notice of rulemaking or opportunity for public comment, the Health Resources Services adopted the Institute of Medicine s recommendations in full. See Health Resources and Services Administration, Women s Preventive Services: Required Health Plan Coverage Guidelines, Resources Services.gov/womensguidelines (last visited Oct. 31, 2012) ( Health Resources Services Guidelines ). 66. Contemporaneously, HHS issued an interim final rule requiring group health plan[s] and health insurance issuer[s] offering group or individual 2 INSTITUTE FOR MEDICINE, CLINICAL PREVENTIVE SERVICES FOR WOMEN: CLOSING THE GAPS (2011), available at ICESINSTITUTE OF MEDICINE%20REPORT.pdf. 16

17 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 17 of 52 insurance coverage [to] provide benefits for and prohibit the imposition of costsharing with respect to the women s preventive care and services included in the Health Resources Services Guidelines for plan years beginning on or after August 1, Fed. Reg , (issued on August 1, and published on August 3); 45 CFR (a)(1)(iv). 67. On February 15, 2012, HHS issued final regulations the HHS Mandate by adopting the August 1 interim final rule without change. 77 Fed. Reg (Feb. 15, 2012). 68. On July 2, 2013, HHS finalized its regulations related to the exemptions for religious employers and nonprofit religious organizations which establish, maintain, or arrange health coverage. 78 Fed. Reg et seq. The final regulations became effective August 1, Id. However, the final regulations did not affect the then-existing regulations governing for-profit employers with religious objections to contraceptive coverage because HHS specifically decline[d] to adopt... suggestions that would have made accommodations for these religious objectors. 78 Fed. Reg Among the Federal Drug Administration approved contraceptive methods that all group health plans must provide at no cost are Plan B (the 17

18 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 18 of 52 morning after pill ) and Ella (the week after pill ), 3 drugs that are designed to destroy early human life shortly after conception. 70. Plan B and Ella can prevent the implantation of a human embryo in the wall of the uterus and can cause the death of an embryo. The use of artificial means to prevent the implantation of a human embryo in the wall of the uterus or to cause the death of an embryo each constitute an abortion as that term is used in federal law and Catholic teaching. Consequently, Plan B and Ella are abortifacients. 71. The ACA, under 26 U.S.C. 4980H, requires employers with more than 50 full-time employees (or full-time employee equivalents) to provide federal government-approved health insurance coverage or pay substantial fines and penalties. 72. Employers with fewer than 50 full-time employees must comply with the HHS Mandate, under threat of substantial fines, if they offer a group health plan because the Mandate applies to all non-exempt, non-grandfathered group health plans regardless of the employer s size. 42 U.S.C. 300gg-13(a)(4) 3 FDA Office of Women s Health, Birth Control Guide, available at /UCM pdf. 18

19 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 19 of 52 (Mandate applies to all group health plans); 26 U.S.C 4980D (imposing fines on failure of a group health plan to meet the requirements of the ACA) Moreover, the ACA and the HHS Mandate prevents all employers (and individuals) from selecting a group health plan that does not include coverage for contraceptives, sterilization, abortifacient drugs and related education and counseling because the ACA requires all health insurance issuers offering group or individual health insurance coverage to provide Mandate-compliant coverage. 42 U.S.C. 300gg-13(a)(4). 74. Therefore, Doboszenski and the Company cannot avoid the HHS Mandate by purchasing a group health plan that accommodates their conscience and religious beliefs because no such plan exists. 75. The HHS Mandate does not apply to preexisting group health plans that are considered grandfathered. 76 Fed. Reg & n.4; see also 42 U.S.C (a)(3-4) (specifying those provisions of the ACA that apply to grandfathered health plans). 4 Although the Obama Administration claimed to push back the application of the requirement, under 26 U.S.C. 4980H, that large employers offer group health care to their employees by one year, until 2015, this push-back, the constitutionality of which has been questioned, does not affect the penalties assessed under 26 U.S.C. 4980D. See Mark J. Mazur, Treasury Notes, Continuing to Implement the ACA in a Careful, Thoughtful Manner, available at July 2,

20 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 20 of To remain grandfathered, a group health plan must now and in the future comply with regulations issued by the HHS. See 42 U.S.C (a)(2); 45 CFR ; 75 Fed. Reg , (June 17, 2010); see also HealthReform.gov, Fact Sheet: Keeping the Health Plan You Have: The Affordable Care Act and Grandfathered Health Plans, (last visited Oct. 31, 2010). 77. The ACA and the HHS Mandate do not apply equally to members of certain religious groups. 78. Individual member[s] of a recognized religious sect or division thereof who are conscientiously opposed to acceptance of the benefits of any private or public insurance are exempted from complying with certain provisions of the ACA. 26 U.S.C. 5000A(d)(2)(a)(i), 1402(g)(1). 79. The HHS Mandate indicates that Heath Resources Services may exempt certain religious employers from complying with the HHS Mandate. 45 C.F.R (a)(iv)(A); 76 Fed. Reg. at 46623; 78 Fed. Reg et seq. 80. The HHS has defined which employers are religious for purposes of this exemption. 45 C.F.R (a)(iv)(B); 78 Fed. Reg et seq. 81. Health Resources Services may grant exemptions for religious employers that meet[] all of the following criteria: (1) The inculcation of 20

21 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 21 of 52 religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended. 45 C.F.R (a)(iv)(B)(1)-(4). 82. However, under amended guidelines issued July 2, 2013 and effective as of August 1, 2013, the HRSA states: a religious employer is defined as an employer that is organized and operates as a non-profit entity and is referred to in section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code Fed. Reg et seq The sections of the Internal Revenue Code referenced in the fourth criterion refer to churches, their integrated auxiliaries, and conventions or associations of churches and the exclusively religious activities of any religious order, that are exempt from taxation under 26 U.S.C. 501(a). 26 U.S.C. 6033(a)(1), (a)(3)(a)(i), (a)(3)(a)(iii). 84. The HHS Mandate does not place limits on Health Resource Services discretion to establish an exemption for religious employers, or to grant such 5 Although the CFR definition of religious employer itself has not been modified as of September 11, 2013, the Federal Register and the HRSA have announced this interpretation of religious employer. The change does not affect for-profit companies. 21

22 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 22 of 52 exemptions to organizations meeting the Defendants definition of religious employer. 85. The HHS Mandate contains no exemptions for for-profit organizations, such as plaintiff Company, even when those organizations have a sincere religious objection to the HHS Mandate s requirement that their group health plans provide coverage, at no cost, for contraception, sterilization, abortifacient drugs and related education and counseling. 86. The HHS stated that it based the exemption for religious employers on comments and feedback received on the July 19, 2010 interim final rule, see 76 Fed. Reg. at 46623, the August 1, 2011 amendments to the interim final rule, see 77 Fed. Reg. at 8726, and in amended guidelines adopted July 2, 2013 and effective August 1, 2013, see 78 Fed. Reg and The HHS stated they received over 200,000 responses to the request for comments to the August 1, 2011 amendments to the interim final rule. 77 Fed. Reg. at Through these comments, the HHS was made aware of numerous objections to the HHS Mandate, including, but not limited to, the following: the religious employer exemption is too narrow ; 22

23 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 23 of Fed. Reg. at the definition of religious employer [should] be broadened so that more sponsors of group health plans would qualify for the exemption ; the exemption for religious employers will not allow them to continue their current exclusion of contraceptive services from coverage under their group health plans ; that for certain employers to pay for [contraceptive] services would be contrary to their religious beliefs ; and if the definition of religious employer is not broadened, [employers] could cease to offer health coverage to their employees in order to avoid having to offer coverage to which they object on religious grounds. 89. Despite these, and other, known religious objections, the HHS did not expand the narrow exemption for organizations defined as religious employers, but finalized the interim final rule without change. 77 Fed. Reg. at With full knowledge of the aforementioned objections, the HHS issued the HHS Mandate, which substantially burdens the religious exercise of Doboszenski, Company and millions of other Americans. 91. Because the HHS Mandate arbitrarily exempts certain plans and employers for a variety of secular reasons, but does not exempt similar plans and employers for religious reasons, the HHS Mandate impermissibly targets religious conduct. 23

24 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 24 of The HHS Mandate was adopted without giving due weight to the tens of thousands of public comments submitted to HHS in opposition to the HHS Mandate. 93. The HHS Mandate forces Doboszenski and the Company and others to adopt and endorse the HHS moral view of contraception, sterilization, abortifacient drugs and related education and counseling. 94. On February 10, 2012, HHS issued a document entitled Guidance on the Temporary Enforcement Safe Harbor for Certain Employers, Group Health Plans and Group Health Insurance Issuers with Respect to the Requirement to Cover Contraceptive Services Without Cost Sharing Under Section 2713 of the Public Health Service Act, Section 715(a)(1) of the Employee Retirement Income Security Act, and Section 9815(a)(1) of the Internal Revenue Code ( Guidance ), 6 which established a temporary enforcement safe harbor. 95. Under the Guidance, until the first plan year that begins on or after August 1, 2013 [n]either employers, nor group health plans, nor group health insurance issuers will be subject to any enforcement action by the Departments for failing to cover recommended contraceptive services without cost sharing in non- 6 HHS, Guidance on the Temporary Enforcement Safe Harbor, /files/files2/ / preventive-services-bulletin.pdf (last visited Oct. 31, 2012). 24

25 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 25 of 52 exempted, non-grandfathered group health plans established or maintained by an organization that meets all of the following criteria: 1. The organization is organized and operates as a non-profit entity. 2. From February 10, 2012 onward, contraceptive coverage has not been provided at any point by the group health plan established or maintained by the organization, consistent with any applicable State law, because of the religious beliefs of the organization. 3. the group health plan established or maintained by the organization (or another entity on behalf of the plan, such as a health insurance issuer or third-party administrator) must provide to participants the attached notice, as described below, which states that contraceptive coverage will not be provided under the plan for the first plan year beginning on or after August 1, The organization self-certifies that it satisfies criteria 1-3 above, and documents its self-certification in accordance with the procedures detailed herein. HHS, Guidance on the Temporary Enforcement Safe Harbor, /Files2/ / Preventive- Services-Bulletin.pdf (last visited Oct. 31, 2012). 7 7 On August 15, 2012, Defendants issued a revised Guidance, clarifying certain criteria with respect to the Temporary Enforcement Safe Harbor. HHS, Revised Guidance on the Temporary Enforcement Safe Harbor at 1 n.1, (last visited Oct. 16, 2012). 25

26 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 26 of On March 21, 2012, the HHS issued an Advanced Notice of Proposed Rulemaking ( Advanced Notice ) stating their intentions to propose certain amendments to the Mandate. 77 Fed. Reg (March 21, 2012). 97. In the Advanced Notice, the HHS stated an intention to accommodate some religious non-profit employers not defined as religious employers by HHS by requiring compliance with the mandate by means of requiring those employers insurers to offer the employer s employees the coverage required by the HHS Mandate at no cost. See 77 Fed. Reg. at The Advanced Notice is neither a rule, a proposed rule, nor the specification of what a rule proposed in the future would actually contain. It in no way changes or alters the final status of the HHS Mandate. It does not even create a legal requirement that HHS change the HHS Mandate at some time in the future. 99. On February 6, 2013, the Departments of HHS, Treasury, and Labor proposed to eliminate the first three prongs of the test for what constitutes a religious employer as described in paragraph 79, supra. 78 Fed. Reg On July 2, 2013, HHS finalized without change the proposed regulations described in paragraph 97, supra, so that, as of August 1, 2013, the definition of religious employer had become only the fourth prong of the prior test: The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 26

27 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 27 of , as amended. 78 Fed. Reg ; see also However, HHS specifically decline[d] to adopt... suggestions that would have made accommodations for for-profit companies and their owners with religious objections to the HHS Mandate. 78 Fed. Reg In other words, for-profit employers with religious objections remain subject to the HHS Mandate s contraception coverage requirements. See id The ACA creates a system of individualized exemptions The ACA grants HHS the authority to grant compliance waivers, which exempt certain entities from complying with certain provisions of the ACA, including the requirement that employers provide health care coverage Employers who are exempt from providing health care coverage are exempt from complying with the HHS Mandate Upon information and belief, HHS has granted over 1,000 compliance waivers HHS has granted compliance waivers to for-profit businesses, unions, and other organizations for purely secular reasons, but has not exempted Company despite Doboszenski s sincere religious objections The ACA is not generally applicable because it provides numerous exemptions from its rules and applicability. 27

28 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 28 of The ACA is not neutral because some organizations and individuals, both secular and religious, are exempt from complying with certain provisions it, including the HHS Mandate The ACA is not neutral because some organizations and individuals, both secular and religious, have been granted compliance waivers, exempting them from complying with certain provisions of it, including the HHS Mandate. Doboszenski, his Company and the HHS Mandate 109. The HHS Mandate applied to the Company s first group health plan year after August 1, The plan year for the Company s current group health plan is through December 1, 2013 (pending approval from Medica) The HHS Mandate applies to any group health plan provided by the Company The Company does not qualify for any of the exemptions to the ACA The Company does not qualify for an individual exemption under 26 U.S.C. 5000A(d)(2)(a)(i) and (ii) as the Company does not object to acceptance of public or private insurance funds in their totality -- a requirement for the exemption The Company s current group health plan also does not qualify as a grandfathered group health plan. 28

29 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 29 of Upon information and belief, the Company s current group health plan does not qualify as a grandfathered group health plan because Medica, the insurer for the Company s group health plan, along with all the other Minnesota group health insurance carriers, decided not to keep their small group plans a form of which the Company offers to its employees grandfathered. Upon information and belief, Medica made significant enough plan changes to the Company s small group plan that resulted in loss of grandfathered status Even if this were not so, the Company could not qualify for grandfather status because the Company did not provide the required notification, see 45 CFR (a)(2)(i)-(ii), to plan participants that its plan was considered grandfathered (because the plan was not considered grandfathered) The Company does not qualify as exempt religious employers under 45 CFR (a)(1)(iv)(A)-(B) or under the guidelines set forth by the HRSA and effective August 1, 2013, available at The Company is not religious enough under the HHS s definition of religious employer in several respects because, including but not limited to, the Company has purposes other than the inculcation of religious values, it does not primarily hire or serve Catholics, and because Doboszenski s current businesses are not churches, integrated auxiliaries of particular churches, convention, or association of churches, or the exclusively religious activities of a religious order. 29

30 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 30 of Because the Company does not qualify for the religious employer exemption, it is not permitted to take advantage of the temporary enforcement safe-harbor as set forth by the Defendants at 77 Fed. Reg and the contemporaneously-issued Guidance The HHS Mandate requires that the Company finance coverage for and facilitate access to contraception, sterilization, abortifacient drugs and related education and counseling against the Plaintiffs conscience and in violation of their religious beliefs, in a manner that is contrary to law The HHS Mandate constitutes government-imposed coercion on Doboszenski and Company to change or violate Doboszenski s sincerely held religious beliefs The HHS Mandate exposes the Company and Doboszenski to the imposition of substantial fines and penalties for refusing to change or violate their religious beliefs Pursuant to the HHS Mandate, all insurance issuers must provide coverage for contraception, sterilization, abortion and abortifacient drugs and related counseling services in all group health plans as of August 1, HHS has deprived Doboszenski and the Company of any choice to select a group health plan that excludes coverage for these drugs, devices, and services. 30

31 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 31 of Doboszenski and the Company are forced to select and pay for a group health plan that includes the HHS Mandate-compliant coverage in violation of their religious beliefs. Protecting employees is also a sincere religious based belief and the offer of health insurance meets that obligation The HHS Mandate will prevent Doboszenski from exercising his religiously-held duty to provide for the health and welfare of his current and future employees by providing them a group health plan without the objectionable HHS Mandate-compliant coverage Doboszenski has a sincere conscientious religious objection to funding coverage for and facilitating access to contraception, sterilization, abortifacient drugs and related education and counseling The HHS Mandate directly punishes, with substantial fines and penalties, Doboszenski s exercise of his religious beliefs The HHS Mandate imposes substantial burdens on Doboszenski s exercise of his sincerely-held religious beliefs through the Company. 31

32 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 32 of 52 The Plaintiffs are exposed to substantial tax penalties and interest The Defendant IRS is the responsible governmental agency for the application and enforcement of fines or monetary tax penalties through IRS rules and regulations. Failure to abide by those rules and regulations will result in substantial penalties for both employers and employees Violations of the Affordable Care Act coverage mandates are subject to tax under Internal Revenue Code section 4980D and the employer must pay an excise tax of $100 per day during the noncompliance period with respect to each individual to whom the violation relates. This tax must be self-reported annually to the Internal Revenue Service on Form 8928 under Chapter 43 of the Internal Revenue Code no later than the deadline for the filing of the entity s federal income tax return. Payment of the excise tax is due upon the filing of Form Interest is charged on taxes not paid by the due date even if an extension of time to file is granted regarding Form The interest rate is determined under Internal Revenue Code There is a penalty for a late filing of the Form 8928 return, including extensions. The payment may include a penalty of up to 5% of the unpaid tax for each month or part of the month the unpaid tax return is late, up to a maximum of 25% of the unpaid tax. Failure to pay any excise tax with the filing of Form 8928 will also result in an additional penalty of ½ of 32

33 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 33 of 52 1% of the unpaid tax for each month or part of a month the tax is not paid, up to a maximum of 25% of the unpaid tax The implementation of the self-reporting obligation of the excise tax began for health insurance plan years beginning on or after January 1, Doboszenski s and the Company s group health insurance plan renewal period will begin on December 1, 2013 (pending approval by Medica). Doboszenski and the Company will have to file Form 8928, return of certain excise taxes under Chapter 43 of the Internal Revenue Code, when they fail to meet the requirements under section 4980D In addition, under section 4980H of the Affordable Care Act, large employers, who employ 50 or more full-time employees, including full-time equivalents, may be subject to a penalty if they do not offer health coverage, or if they offer coverage, that is unaffordable or does not provide minimum value Under section 4980H(a) of the Internal Revenue Code, if an employer fails to offer health coverage to its full-time employees and their dependents, and at least one full-time employee obtains subsidized coverage in a state health insurance Exchange, the 4980H(a) annual tax penalty is $2,000 times the total number of full-time employees employed by the employer. For purposes of calculating the 4980H(a) penalty, the number of full-time employees is reduced by

34 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 34 of The State of Minnesota has an American Health Benefit Exchange as one avenue individuals may purchase insured coverage. (See, ACA 1311(b)). Individual health insurance coverage is also available outside of the Exchange depending upon the individual s determination of what is the best value for him or her Doboszenski and the Company employ Minnesota residents. At least one employee, upon information and belief, will seek insurance through the Minnesota Exchange Under the present proposed rules and regulations, Doboszenski and the Company do not employ over 50 full-time employees, and are not considered a large employer under 26 U.S.C. 4890H. However, there exists the possibility that the Company could employ over 50 employees for ACA counting purposes at some point in the future, which would subject them to substantial tax penalties if the Company fails to meet certain requirements for health insurance coverage to their employees Likewise, individuals such as Doboszenski and the Company s employees who fail to obtain compliant health insurance will be subject to substantial IRS tax penalties collectable through the withholding of federal tax refunds. 34

35 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 35 of Doboszenski and the Company, based on their religious beliefs, consider it a moral obligation to offer their employees the benefit of health insurance to protect their employees well-being and that of their family members Doboszenski and the Company s employees have and continue to rely upon offered health insurance to protect themselves and family members The Affordable Care Act is coercing Doboszenski and the Company to forego their religious beliefs and refuse to offer health insurance to employees. As a consequence, Doboszenski and the Company will face substantial tax penalties as imposed through the Defendant IRS Doboszenski and the Company bring this action to enjoin HHS s violations of Doboszenski s and the Company s statutory and constitutional rights and to permit Doboszenski and the Company to operate their current and future businesses in a manner consistent with and not in violation of their sincerely-held religious beliefs Doboszenski and Company have no adequate remedy at law. Claims for Relief COUNT I Violation of the Religious Freedom Restoration Act 42 U.S.C. 2000bb 145. Plaintiffs reallege and incorporate by reference the preceding paragraphs of this complaint as though fully set forth herein. 35

36 CASE 0:13-cv JNE-FLN Document 1 Filed 11/14/13 Page 36 of Doboszenski s sincerely-held religious beliefs prohibit him, through the Company, from purchasing or providing coverage for contraception, sterilization, abortifacient drugs and related education and counseling in Company s group health plan Doboszenski, as a member of the Catholic Church, adheres to Catholic teachings with regard to contraception, sterilization, abortion, abortifacient drugs and related education and counseling. He exercises religion with respect to those teachings within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb ( RFRA ) The HHS Mandate coerces Doboszenski to change or violate his sincerely-held religious beliefs by requiring the Company to provide group health plans compliant with the HHS Mandate or be charged with substantial fines and penalties According to Roman Catholic religious law, it would be public scandal for Doboszenski to knowingly continue owning a business that provides health care coverage for contraception, sterilization, abortion, abortifacient drugs and related education and counseling The HHS Mandate coerces Doboszenski through the Company to violate his sincerely-held religious beliefs. 36